Case 1:16-cv-00455-RGA Document 337 Filed 12/13/17 Page 1 of 2 PageID #: 23166
`
`M O R R I S , N I C H O L S , A R S H T & T U N N E L L L L P
`1201 NORTH MARKET STREET
`P.O. BOX 1347
`WILMINGTON, DELAWARE 19899-1347
`
`(302) 658-9200
`(302) 658-3989 FAX
`
`STEPHEN J. KRAFTSCHIK
`(302) 351-9378
`(302) 498-6233 FAX
`skraftschik@mnat.com
`
`
`
`The Honorable Richard G. Andrews
`United States District Court
` for the District of Delaware
`844 North King Street
`Wilmington, DE 19801
`
`December 13, 2017
`
`VIA ELECTRONIC FILING
`
`Re:
`
`Acceleration Bay LLC; C.A. Nos. 16-453 (RGA); 16-454 (RGA); and 16-455 (RGA)
`
`Dear Judge Andrews:
`When addressing Term 19 at the hearing Plaintiff stated that “the approach that
`the Court took with respect to m-regular, pointing to the configured to language is exactly the
`way to resolve the issue here.” Tr. at 62:6-8. The Plaintiff then explained “Our position is, if the
`network is configured such that it would be m-regular and incomplete, if that's a state that it
`seeks [and] achieves, then it's infringing.” Id. 71:15-17 (emphasis added); see also id. at 67:2-5;
`69:12-16. In response, Defendants provided the Court with an alternative that was based on the
`way the Court resolved the m-regular dispute, i.e., “thus the m-regular graph is configured to
`maintain a non-complete state.” Id. at 74:17-75:19. In light of the parties’ apparent agreement
`on the “configured to” aspect of the construction, the Court invited the parties to discuss this
`term and to provide any further comments to the Court. Tr. at 77:21-78:4.
`
`The Parties conferred but were unable to reach agreement. Yesterday, Plaintiff
`proposed a new construction that does not include or capture the essence of the “configured to”
`language it advanced at the hearing. Its new construction merely restates that the network is
`non-complete (“one1 or more of the participants are not directly connected to each other”)
`without resolving the central dispute between the parties, i.e., whether the claims cover a
`network configured to be complete that may have non-completeness by happenstance, such as
`may be caused by the inability of participants to establish a direct connection. The criticality of
`being non-complete was emphasized both during the original prosecution (see, e.g., B-1, ‘344
`Patent File History, 9/10/03 Amendment, at 11) and during the more recent IPR proceedings,
`where Plaintiff told the PTAB that the claimed network is “always… an incomplete graph” (D-2,
`Patent Owner’s Preliminary Response to Petition for the ‘344 Patent at 26). Defendants’ original
`
`1 Defendants do not understand how it is possible for “one” participant to “not [be] directly
`connected to each other” – this is nonsensical.
`
`
`
`

`

`Case 1:16-cv-00455-RGA Document 337 Filed 12/13/17 Page 2 of 2 PageID #: 23167
`The Honorable Richard G. Andrews
`December 13, 2017
`Page 2
`
`
`construction of Term 19, i.e., “thus the m-regular graph is always non-complete” is correct
`because it holds Plaintiff to the clear statements it made to the PTAB and resolves the central
`dispute between the parties that occasional incompleteness is not covered by these claims.
`However, Defendants respectfully suggest that, at the very least, the claims should be interpreted
`to require a non-complete state whenever it is possible for the network to be non-complete,
`which Defendants’ alternative construction (“thus the m-regular graph is configured to maintain
`a non-complete state”) captures.
`
`Respectfully,
`
`/s/ Stephen J. Kraftschik
`
`Stephen J. Kraftschik (#5623)
`
`
`SJK:ncf
`cc:
`Clerk of Court (Via Hand Delivery)
`
`All Counsel of Record (Via Electronic Mail)
`
`
`
`
`
`
`
`